The Power of Comparator Evidence in Student Dismissal Cases

When a medical student, graduate student, or professional student is dismissed for alleged professionalism, attendance, academic, or conduct violations, the school will often say the decision was an internal academic judgment. That matters because courts frequently give schools significant deference in academic and professionalism decisions.

But deference is not immunity.

Courts do not usually re-grade students or second-guess every academic decision. However, a school’s decision may be challenged where the student can show that the decision was arbitrary, capricious, irrational, made in bad faith, contrary to the school’s own rules, or unsupported by a fair decision-making process.

That is where comparator evidence becomes critical.

The Supreme Court has recognized that courts should be cautious when reviewing academic decisions. In Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978), the Court found no showing of arbitrariness where a medical student had been repeatedly evaluated, warned about deficiencies, and reviewed through multiple academic layers before dismissal.

Likewise, in Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985), the Supreme Court explained that judicial review of academic decisions is narrow and that a student must show something like a “substantial departure from accepted academic norms” indicating that the faculty did not actually exercise professional judgment. The Court emphasized that the record showed the school acted conscientiously and with careful deliberation.

Those cases are often cited by schools. But students should not ignore the other side of the same standard. If a school did not act carefully, did not follow its own process, did not treat similar students consistently, or imposed dismissal without a rational explanation, then the issue is no longer simply whether the court should defer to academic judgment. The issue becomes whether real academic judgment was exercised at all.

Florida law recognizes a similar limitation. In Tercier v. University of Miami, Inc., 383 So. 3d 847 (Fla. 3d DCA 2023), the Third District cited Sharick v. Southeastern University of Health Sciences, Inc., 780 So. 2d 136 (Fla. 3d DCA 2000), for the rule that judicial review of a private educational institution’s academic-performance determination is limited to whether the decision was “arbitrary and capricious, irrational, made in bad faith, or in violation of constitution or statute.”

That is the lane comparator evidence fits into.

A decision can appear legitimate when viewed in isolation. A student missed days, violated a reporting rule, failed a course, had a professionalism issue, or did something the handbook prohibits. The school then says dismissal was authorized.

But the question is not always whether the school had some authority to discipline the student. The deeper question is whether the school exercised that authority fairly, consistently, and rationally.

Comparator evidence helps prove arbitrary-and-capricious treatment by showing that the school treated similar or worse conduct differently.

For example:

• If one student is dismissed for alleged absences, but another student with comparable or greater absences is allowed to make up the rotation, that may support an inconsistency argument.
• If one student is dismissed for professionalism concerns, but other students accused of more serious professionalism misconduct receive probation, remediation or nothing at all, that may support an arbitrary-sanction argument.
• If a school says dismissal was mandatory, but records show the school previously imposed lesser sanctions for the same handbook violation, that may undermine the school’s explanation.
• If a school claims it did not know about other misconduct, but emails, committee minutes, student-affairs records, or administrator communications show notice, that may undercut the school’s defense.
• If a school applies a harsh interpretation of a rule to one student but a flexible interpretation to others, that may support bad faith, selective enforcement, or breach of the implied covenant of good faith and fair dealing.

Comparator evidence is not just about saying, “Other students did bad things.” It is about showing that the institution’s explanation does not line up with its own actual practices.

A weak comparator allegation says:

Other students did worse things and were not dismissed.

A stronger comparator allegation says:

During the same academic year, another student named “so and so” in the same program did XYZ which was comparable and/or even worse and in an ultimate fact pleading state, such as Florida, attaching the ultimate fact documentation helps and it also proves notice to when the school turns a blind eye.

That level of detail matters.

In Tercier, the court affirmed dismissal where the student’s allegations were not pled with enough legal and factual specificity. The case is useful as a warning: courts are not looking for broad accusations that a school acted unfairly. They are looking for facts connecting the school’s conduct to a specific contractual promise, policy, procedure, bad-faith act, or irrational decision.

Comparator evidence can supply those missing facts if plead with enough deal and not just “I heard from so and so who heard from so and so that XYZ did something way way worse 9 years ago.

A student may prove arbitrary-and-capricious treatment through several categories of evidence.

This is the most direct use of comparator evidence. The student should try to identify the specific student, the conduct, the policy violation, the decisionmaker, the sanction, and the school’s knowledge, or it is possible that there was nothing done at all.

A useful comparator is not necessarily identical in every detail. But the closer the comparator is in program, timing, policy, decisionmaker, and seriousness of conduct, the stronger the argument becomes.

Schools often rely on handbooks, syllabi, catalogs, professionalism policies, clinical manuals, appeal procedures, and committee rules. In Florida, the private university-student relationship is often treated as contractual in character. In Tercier, the court recognized that the relationship between a private university and student is contractual, while also emphasizing that the student must identify a legally sufficient breach of the applicable handbook or policy.

Evidence that the school skipped required steps, ignored appeal rights, failed to consider required factors, used the wrong standard, or changed the rule after the fact may support an arbitrary-and-capricious argument.

A decision may appear rational at first. But if the school gives one reason during the committee process, another reason during appeal, and another reason in litigation, that may support an inference that the stated rationale was pretextual or not the real basis for the decision, which could just be that they felt like it.

This is especially important when the written decision letter is vague. A vague letter may allow the school to later reshape the reason for dismissal, which they often do in a misguided attempt to justify the problematic original reason. That is why committee minutes, internal emails, evidence packets, and appeal records matter.

Most handbooks contain a range of possible sanctions: warning, probation, suspension, remediation, leave of absence, repeat coursework, repeat rotation, or dismissal. If dismissal is the harshest sanction, a student should ask whether the school normally reserves dismissal for more serious or repeated misconduct.

If the school imposed dismissal for a remediable issue but gave lesser sanctions to students accused of more serious misconduct, that may support an argument that the sanction was arbitrary, disproportionate, or imposed in bad faith. Also the history of the “decisions” (more appropriately called rubber stamps) made by the committee

In Ewing, the Supreme Court emphasized that the dismissal decision was based on review of the student’s entire academic career and was made conscientiously and with careful deliberation.  That language can help students too. If the school did the opposite—ignored favorable evidence, refused to consider mitigation, relied on inaccurate facts, withheld the evidence packet, or failed to explain the actual basis for dismissal—the student can argue that the school did not exercise genuine professional judgment.

This is one of the most important reasons comparator evidence must be preserved early.

Schools may later argue that they cannot be responsible for conduct they did not know about. That is why it is not enough to know that another student was treated differently. The student should try to prove who at the school knew, when they knew, and what they did in response, if anything at all.

Useful evidence may include emails, meeting notes, student-affairs records, clinical-site communications, committee minutes, appeal records, screenshots, witness statements, and court filings by viewing the docket.

Comparator evidence is also important in discrimination cases. In Radwan v. Manuel, 55 F.4th 101 (2d Cir. 2022), the Second Circuit held that a student-athlete’s Title IX claim could proceed where she presented evidence comparing her punishment to punishments imposed on male student-athletes for misconduct. The court found that the detailed comparison created a triable issue as to whether she received a more serious disciplinary sanction because of her gender.

The lesson applies beyond Title IX: comparator evidence can turn a vague fairness argument into a concrete unequal-treatment argument.

Schools frequently invoke FERPA when comparator evidence involves other students. FERPA protects the privacy of student education records, and schools must take it seriously. But FERPA should not be treated as a magic shield that prevents any inquiry into inconsistent discipline.

Comparator evidence can often be handled through redactions, de-identified records, protective orders, subpoenas, or carefully limited discovery. The student does not need to publicly expose classmates’ private records to argue that the school treated similar situations differently.

The key is to preserve the information lawfully and frame the issue correctly: the point is not to embarrass other students. The point is to test whether the school applied its rules consistently.

To prove that a school acted arbitrarily or capriciously, a student usually needs more than the argument that the outcome was harsh or unfair (which most of the time they are). The student needs facts showing that the school’s decision lacked a rational basis, departed from its own policies, ignored material evidence, changed explanations, acted in bad faith, or treated similarly situated students differently.

Comparator evidence is one of the best ways to prove that, but one of the hardest for students to get. Students are at an information disadvantage and the schools know that.

That is why students facing dismissal should preserve evidence early, request their own education records, identify who at the school knew what, and attempt to locate comparators, which counsel can help with.

A school may claim it did not know. It may claim FERPA prevents disclosure. It may claim the other students were different. But detailed comparator evidence can force the real question:

Was dismissal the fair and consistent application of school policy, or was it arbitrary, capricious, and selectively imposed?

Related practice areas

• Discrimination, harassment and retaliation
• Student conduct and code-of-conduct defense
• Professionalism and fitness concerns

If your matter is at a Florida institution, the school-specific pages are indexed on the Florida schools page.